Ex Parte: Attorney-General In Re: Constitutional Relationship Between Attorney-General and the Prosecutor-General (SA 7 of 1993) [1995] NASC 1 (13 July 1995)

Ex Parte: Attorney-General In Re: Constitutional Relationship Between Attorney-General and the Prosecutor-General (SA 7 of 1993) [1995] NASC 1 (13 July 1995)

The Attorney-General does not have authority to instruct the Prosecutor-General to institute, decline, or terminate prosecutions, nor to direct prosecutorial steps. The Prosecutor-General is independent in prosecutorial decisions. However, the Prosecutor-General must keep the Attorney-General informed of significant prosecutions to enable the Attorney-General to exercise final responsibility for the office. Section 3(5) of the South African Criminal Procedure Act does not apply as it is inconsistent with the Namibian Constitution.

Citation
[1995] NASC 1
Parties
Applicant: Attorney-General; Respondent: Prosecutor-General
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
13 July 1995
Case Number
SA 7 of 1993
Procedural Posture
Constitutional Reference / Final Judgment
Outcome
petition granted in part
Legal Topics
Separation of Powers, Prosecutorial Independence, Executive Authority, Constitutional Interpretation
Source Language
English
Constitutional Law Administrative Law Separation of Powers Prosecutorial Independence Executive Authority Constitutional Interpretation

Case Brief

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Parties

Attorney-General

Applicant

Prosecutor-General

Respondent

Procedural Posture

Constitutional Reference / Final Judgment

Legal Issues

  1. 1 Whether the Attorney-General has authority to instruct the Prosecutor-General to institute, decline, or terminate prosecutions
  2. 2 Whether the Attorney-General can direct the Prosecutor-General in prosecutorial steps
  3. 3 Whether the Prosecutor-General must keep the Attorney-General informed of significant prosecutions

Ratio Decidendi

The Attorney-General does not have authority to instruct the Prosecutor-General to institute, decline, or terminate prosecutions, nor to direct prosecutorial steps. The Prosecutor-General is independent in prosecutorial decisions. However, the Prosecutor-General must keep the Attorney-General informed of significant prosecutions to enable the Attorney-General to exercise final responsibility for the office. Section 3(5) of the South African Criminal Procedure Act does not apply as it is inconsistent with the Namibian Constitution.

Court Disposition

petition granted in part

Orders

  • Questions (i) and (ii) are answered in the negative: the Attorney-General does not have authority to instruct or direct the Prosecutor-General in prosecutorial decisions or steps.
  • Question (iii) is answered in the affirmative: the Prosecutor-General must keep the Attorney-General informed of significant prosecutions.